Category Archives: Divorce

Benefits of Negotiating Child Support Modification in Mediation

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Child Support paymentChild support can often be modified after an original order is entered when circumstances change. State law may specify that this must be a material change, which may include an effect on income or expenses over a certain percentage amount. A change in your child’s needs may also justify modification of child support. Rather than heading back to court, the parties can use the mediation process to address their needs and legal dispute.

Mediation is a process in which a neutral third party attempts to help the parties reach an agreeable solution to their legal problem without further court involvement. The parties work together to come up with a solution that they can both accept. In mediation, the parties can discuss their child’s needs and explain why the existing amount of child support is not appropriate. Mediation can put the parents’ needs into perspective.

Also, In mediation, the parties can come up with a solution that takes more into consideration than the standard child support tables. Afterall, these tables represent an average family and not the specific needs of you and your children. For example, the parents may value higher education and may agree support should include payment of certain post-secondary expenses. Or, the parents may temporarily defer child support payments if the paying parent suffered a reduction in hours at work or a temporary job loss.

Mediation is also helpful because it decreases legal expenses. The less time parents spend fighting with each other, the less their legal expenses will be. The costs of mediation can be split between the parties. The parents may then present a joint petition to the court to modify the amount of support.

Creative Solutions for Alimony Disputes in Mediation

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Alimony is one of the most contentious aspects of a divorce case with the parties often taking polarizing positions. One spouse may feel that his or her contributions to the marriage are not appreciated and may feel that he or she has a right to alimony. The higher-earning spouse may resent the idea of having to provide financial support to whom he or she is divorced. Mediation can often bridge the gaps between the parties and provides the opportunity for creative solutions.

A mediator who is mediating an alimony dispute can talk to each party separately. During these one-on-one conversations, the parties may reveal that they share many of the same goals, such as wanting an amicable relationship, wanting financial responsibility for both parties, providing economic stability for the children and wanting eventual self-sufficiency. By talking to each party in a respectful way and targeting the parties’ shared goals, the mediator can often help the parties move from their positions toward an amicable compromise.

By reciting their goals and interests, the parties can then open themselves up to resolving their legal dispute through creative solutions. For example, a spouse may agree to not pursuing alimony if he or she can walk away with a valuable asset, such as the marital home. The parties may agree to other alternatives, such as splitting the time more equitably with the children so that each parent is responsible for them and associated expenses roughly half of the time. A spouse may agree to set up a trust and provide payments for specific purchases or uses. The parties are free to agree to any decision that they reach so long as it is legal, so this allows a lot of flexibility for the spouses.

Mediating Palimony Claims

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Palimony is a mix between the word “pal” and “alimony” for good reason.  Alimony is commonly reserved for married couples.  However, in some cases, it – or something like it – may be awarded to individuals who are not married.  Being involved in a legal battle in which palimony is contemplated can be complex and exhausting.

When a couple gets divorced, the law in their state uses equitable distribution or community property principles, depending on state law.  However, when they are determining palimony, they often apply theories related to contract law or equity considerations.  In this manner, cohabitating couples are afforded some protections, although these are often much less than those afforded married partners.

Litigating palimony cases is often time-consuming and expensive.  A party who does not want to pay palimony may wind up fighting over the issue and being ordered to pay anyway.  A party who does want alimony may wind up spending a sizable amount of money on litigation only to find out that he or she does not meet the state requirements for palimony.  Just like in alimony cases, the judge is often given a significant amount of discretion, so the outcome is often unpredictable.  Additionally, palimony laws vary by each state with some requiring a formal written contract before awarding it, so it is difficult to determine whether a person may be eligible for this type of support.

Rather than litigating the claim, many parties may benefit from mediating it.  During mediation, the parties can present their own position and work toward a compromise.  The parties may agree for the higher-earning partner to pay for education or temporary support based on promises that were made during the relationship.  By engaging in the mediation process, parties can often maximize the satisfaction of their needs while minimizing a risky outcome.

Keys to Mediating Marital Property Disputes

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After a couple has accumulated assets for a number of years and their relationship starts to deteriorate, they may not agree on how these items should be divided. Sometimes these items represent a source of contention for the parties who are not really fighting over the household furniture or silverware but are instead using them as a way to punish each other or keep the conflict alive. A mediator can help the parties deal with the emotions involved in divorce and guide them toward an out-of-court resolution that satisfies both of their needs.

One effective way of starting the process is to acknowledge the difficult feelings that marital assets cause. They may be tied to memories or shattered dreams. By communicating in a safe environment and accepting that the process is difficult, the parties are often able to move past this in order to think rationally.

Once in this mindset, the mediator can explain the negative consequences of litigating the case, such as the tremendous financial cost. Many married partners have battled things out in court only to find that they had no money left at the end of the process due to the steep legal expenses. Additionally, litigation means that the parties will air their grievances in a public forum and often in a setting where a person can easily search for court documents and be able to find them. Being in public often cements parties’ positions and makes them less willing to compromise. In contrast, mediation is confidential and keeps private battles away from the public eye. Mediation often helps the parties heal and focus on having a better relationship in the future. While courts are limited in the remedies that they can offer, mediation provides greater flexibility to the party participants.

Mediating Contentious Alimony Cases

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Spousal support cases are some of the most bitter cases where the parties have often dug in their heels to completely opposite positions.  Spouses on both side of the issue may feel strong emotions such as mistrust, anger, abandonment, outrage and exploitation.

Effectively mediating such cases takes a great deal of patience and sensitivity as the mediator navigates the narrow path to finding a solution that both parties will be satisfied with without feeling taken advantage of.

In most states, there are no hard and fast rules as to the amount or duration of alimony payments.  Many courts treat the issue of alimony as a discretionary one in which they decide what is fair under the particular circumstances after weighing a number of factors, including the length of the marriage, the contributions of the spouses during the marriage and the earning capacity of the spouses.  The courts are often tasked with the difficulty of determining how to keep both spouses in the approximate standard of living that they enjoyed during the marriage after they are no longer together.  A skilled mediator can explain that many spouses have financial interdependence during a marriage and that it will take some time to unravel this so that the spouses can eventually both secure financial independence.  The key question is how spousal support can eventually lead to this possibility.

Because there are typically no hard and fast rules regarding the order of spousal support, the mediator can use this ambiguity to assist with mediation.  He or she can explain to each party independently what the court might order in the worst case scenario and potentially cite to a specific case where that is exactly what happened.  Fueled with this information, the parties may be more inclined to settle their spousal support case on their own terms rather than leaving the decision to be made in an unpredictable fashion.

Considerations for Divorce Modification & Enforcement

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Most family law practitioners know that divorce is often not the ending.  Post-divorce modification and enforcement actions can cause a case to continue on indefinitely.  When a modification is being contemplated, there are several factors to consider, including:

Type of Modification

There may be a variety of modifications that may arise over time.  An award of spousal support may need to be adjusted based on a disability or change in income.  Child support may be increased or decreased due to change in family circumstances, income or expenses.  Child custody or visitation may be modified because of a change in the child’s preferences, relocation or other circumstances.

Court’s Authority

Both parties must consider the authority of the court.  State law may limit when a modification action can be heard by the court, such as once every three years unless there is a material change.  Child custody decisions are based on the child’s best interests, which may evolve over time.  The court may be unable to hear a case regarding an adjustment in child support if no significant changes have occurred.

Jurisdiction

Typically, the court that sets the original order retains jurisdiction of the case.  However, if the parents move, the state may relinquish jurisdiction of the case and new rules could apply.

Desired Enforcement Mechanism

If one party is not complying with the court’s order, the other party may need to consider what type of enforcement action he or she is looking for.  For example, if the party is refusing to pay child support, attempting to get that parent locked up may not serve the other party’s interests.

Agreement

In some cases, both parties may agree that a change may be necessary.  Rather than having to fight through litigious hearing, the parties may agree to participate in mediation or arbitration so that they have a greater say over how their legal dispute is resolved.  Both options provide substantial benefits.

Divorce Modification and Enforcement Mediation

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There are many times when a former couple must rely upon a mediator to help modify a divorce order.  Some examples include:

Change of Spousal or Child Support

A change of spousal support or child support may be necessary when one of the spouses changes jobs.  The income figured used to calculate the proper amount of support may be changed due to this recent development.  Other reasons may arise that call for a modification, such as when the supported spouse gets married or becomes reliant on a romantic partner.

Compliance

Sometimes there are orders made to the parties that extend past the divorce date.  For example, a spouse may be ordered to pay certain expenses.  A spouse may have been ordered to refinance the house in his or her own name but not be able to after the fact.  Mediation allows the parties to work out solutions to these common post-divorce issues.

Change in Parenting Time

As children get older, their needs may change.  They may become involved in extracurricular activities and need the plan to adjust so that they can attend these functions.  They may also prefer to spend the night at a friend’s house instead of at the non-custodial parent’s house.  Mediation can help reevaluate what adjustments can be made so that the new agreement better serves the family’s interests.

Relocation

Custody agreements can remain in effect for years.  However, there may be changes in a person’s life that occur during this time, such as getting a new job that requires relocation.  When a parent moves to another city or state, the impact can be significant on the custody plan.

Decisions

The parents may encounter a decision in which they come to an impasse.  This may be a decision regarding which school the child should attend, a healthcare decision or a decision regarding religious upbringing.